Page images

individuals. Custom in many instances exercises a controlling influence over a contract, changing the meaning of a word from one which it bears almost universally to another which is entirely different, and its influence is allowed when it can be said that both parties must have used the words in the sense attached to them by custom, and that each party had good reason to believe that the other party so understood them. <1]>

Great Britain, immemorially, has claimed and exercised exclusive property and jurisdiction over the bays or portions of sea cut off by lines drawn from one promontory to another and called the King's Chambers. <12> A similar property and jurisdiction is and has been claimed by the United States over the Delaware Bay, and other bays and estuaries forming portions of their territory. (L-> Chancellor Kent in his commentaries says: "It is difficult to draw any precise or determinate conclusion amidst the variety of opinions as to the distance to which a State may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond those portions of the sea which are embraced by harbours, gulfs, bays and estuaries, and over which its jurisdiction ungues

tionably extends The executive authority of this

country, in 1793, considered the whole of Delaware Bay to be within our territorial jurisdiction; and it rested its claim upon those authorities which admit that gulfs, channels and arms of the sea belong to the people with whose lands they are encompassed." In 1806, the United States Government insisted that the extent of neutral immunity, terms equivalent to maritime territory, should correspond with the claims maintained by Great Britain around her own territory, and that no belligerent right should be exercised within "the chambers formed by headlands, or anywhere at sea within the distance of four leagues, or from a right line from one headland to another." <14>

It is to be remembered also, that the United States have inherited from Great Britain the principle now maintained in this

(11) 2 Parsons on Con., pp. 55 and 56. Gorrissen vs. Perrin, 2, C B. N. S. 681. Vattcl pref. p. Ixv. § 26. 2 Phillimore § 73. Hcffter I 94, 95. Petrushevecz art. 68, 69. 2 Phil, jj 73.

(IS) 1 Phillimore § 199. Heffter § 76. Abdy's Kent p. 114.

(13) L's Wheaton, pt. 2, c. 4, § 7. 1 Attys Gen. Op. p. 33. 1 Kent p. 30.

<M) 1 Kent p. 30.

affair by the latter State. The doctrine of bays, no matter of what size, being subject to the territorial jurisdiction of the State owning the headlands and shores was fully admitted in Great Britain previous to the Amei ican Revolution, and as all the other principles of International Law recognized by the mother country at that time were adopted by the Americans after the recognition of their independence, is it not the only deduction that can be drawn from the history of the two nations, their diplomatic correspondence, and the opinions of their jurists, that iu the convention of 1818, the word "bay" was used, not in the restricted sense recently applied to it by other States, but as applying to all indentations in the coasts of the British North American Provinces, denominated as, or known under the designation of, bays?

The phraseology employed in the convention must also be carefully considered in order to arrive at the meaning of the contracting parties.

By the first part of the article, the inhabitants of the United States have the right of fishing on the coasts, bays, harbours, and creeks of certain specified portions of British North America, the employment of the words "bays, harbours, and creeks" after the word coasts, must be taken as giving greater rights to the Americans than if they had been limited solely to fishing on the coasts; they were in fact so used in derogation of the usage obtaining amongst both nations to consider the coast, where the evenness of the seashore is broken, to be a line drawn from headland to headland, of bays, harbours and creeks. Without the use therefore of those words in addition to "coasts," the Americans would now have no right to fish in, or on, bays, harbours, and creeks even in the limits specified.

In the second portion of the article by which the United States forever renounce the liberty of taking, drying, or curing fish, on, or within, three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America, not included in the specified limits, the intention was to define so clearly the renunciation that thereafter no difficulty, as to its extent, could possibly arise; thus again the words "bays, creeks, or harbours," are used in addition to the word "coasts," and the United States expressly renounce the liberty of taking, drying Mid curing fish, not only on, or within three marine miles of " the coasts," but also within three marine miles of "the bays, creeks and harbours" of British North America. But the word coasts according to the interpretation generally accepted, means, where the evenness of the shore is broken by indentations, a line drawn from headland to headland, when not more than six miles apart, so that the addition of the words "bays, creeks and harbours" add nothing, according to the American interpretation, to the meaning of the word '• coasts." but it is perfectly clear that they do mean something more. The word "bays" is used without limitation, it applies to all the bays not included in the specified limits, and as each b:iy commences from a straight line drawn from one of its headlands to the other, American fishermen have no right to fish within three marine miles of such straight lines, no matter what may be the distance between the headlands of the bay.

The bays, with respect to which difficulties, judging from the past, may be expected to arise. are those of Fundy and Chaleur. The B:iy of Fundy may, perhaps, be regarded as open throughout its whole extent to within three miles of lines drawn from headland to headland of bays, not exceeding six miles in width, and resting upon islands, belonging to New Brunswick, as hereinbefore set out, to the fishing operations of American vessels. The umpire to whom had been referred the question of the condemnation of an American fishing vessel, captured whilst fishing in that bay, held, "that the Bay of Fundy was not a British bay, nor a bay within the meaning of the words used in the Treaties of 1783 and 1818." <15)

The decision of the umpire in that case was accepted by the Government of Great Britain, and the award of damages paid. Great Britain's right to claim that bay as a portion of the maritime territory of the Province of New Brunswick was, in fact, the question submitted for decision, and the ruling of the umpire in favour of the American pretension has the force of a precedent so far as the Bay of Fundy is concerned. But it is to bs remembered that one of the headlands of that Bay belongs to the State of Maine, and the award cannot be held to apply to the B.iy of Chaleur, inasmuch as the question submitted had no reference to the proprietorship of the latter bay,(lfi) and as both its headlands belong to British North America.

With the single exception then of the Bay of Fundy, Ameri

(5) L's Wheaton, pt. 2, c. 4, § 8, n. 106.
(16) 3 Phil. § 3. Vattel, b. 2, § 329.

can vessels have no right whatsoever to fish within three miles of the line stretching from headland to headland of the bays on the coast of British North America, within the limits hereinbefore set out,—their rights are strictly defined by the Convention of 1818, and must be confined within the limits therein specially mentioned. The general rules of International Law, the provisions of the Treaty of 1783, and the privileges extended to them by that of 1854, cannot be invoked in order to liberate them from the terms of the compromise of 1818, construed and interpreted according to the then established custom and usage of the British and American Governments.

Another question which has been frequently raised in connection with the fisheries, is the right of Great Britain to close the Gut of Canso against American vessels.

The Gut of Canso is "a strait in British North America, dividing Cape Breton from Nova Scotia and forming a secure and much frequented passage from the Atlantic into the Gulf of St. Lawrence; it is about twenty-one miles long and varying from one mile to one mile and a half broad." <17>

Taking it for granted that it forms a part of the maritime territory of Canada, still being a means of communication formed by nature between the Atlantic Ocean and the Gulf of St. Lawrence, both, portions of the common property of the nations of the world, it follows as a consequence, that the right of peaceable passage exists in favour of vesselsjof every nationality. The right being one based on the principles of International Law and exercised independently of Great Britain, that power cannot prevent the passage of United States vessels through that Strait. (18>

Writers on International Law are divided in opinion upon the subject, but the greater number espouse the side of the question opposed to the pretensions of Great Britain. Moreover, the general principles of law, and the current of modern opinion as expressed in Treaties, clearly indicate the fallacy of the idea that

(17) Imperial Gazetter.

(18) Abdy's Kent, p. 116; Lawrence's Wheaton, pt. 2, c. 4, § 9; 1 Hautefeuille, pp. 97 and 99 ; .1 Phillimore § 178; 1 Cauchy, p. 42; 1 Cussy, b. 1. tit. 2, § 41; 1 Azuni, pt. 1, c. 3, art. 2 § 1; 1 Ortolan, b. 2, c. 8, p. 146; Vattel, b. 1, c. 23, § 292; Rayneval b. 2, c. 9, § 7; Heffter \ 33, 76; Petruschevecz, art. 9.

Contra—1 Twiss, g 174; Eluber, \ 130; Martens Precis, pp. 171-168. Vol. I. D No. 1.

the right of peaceable passage does not exist in favour of foreign vessels through the Gut of Canso.

The message of President Grant to the Senate and House of Representatives of the United States, delivered on the 5th December, 1870. contains three distinct charges on the subject of the Fishery Question against the Government of the Dominion of Canada. He therein accuses them in the first place of unfriendliness and want of courtesy towards United States fishermen; in the second, of assuming by statute untenable jurisdiction over United States vessels; and in the third, of allowing their officers to make extravagant and unfounded claims.

The first charge is couched in the following language:


"The course pursued by the Canadian authorities towards the fishermen of the United States during the past season has not been marked by a friendly feeling. By the first article of the Convention of 1818, between Great Britain and the United States, it was agreed that the inhabitants of the United States should have forever, in common with British subjects, the right of taking fish in certain waters therein defined. In the waters not included in the limits named in the Convention, within three miles of the ports of the British coast, it has been the custom for many years to give intending fishermen of the United States a reasonable warning of their violation of the technical rights of Great Britain. The Imperial Government is understood to have delegated the whole or a share of its jurisdiction or control of these in-shore fisheries grounds to the colonial authority known as the Dominion of Canada, and this semi-independent but irresponsible agent has exercised its delegated powers in an unfriendly way. Vessels have been seized without notice or warning, in violation of the custom previously prevailing, and have been taken into the colonial ports, their voyages broken np, and the vessels condemned. There is reason to believe that this unfriendly and vexatious treatment was designed to bear harshly upon the hardy fishermen of the United States, with a view to political effect upon this Government."

The President here sets up a breach of a custom previously prevailing to give warning to intending fishermen of the United States of their violation of the technical rights of Great Britain. What the President meant by his use of the terms "technical rights of Great Britain" is rather difficult to find out, but it may be taken for granted that the word "technical" is used to weaken the meaning of the word "rights" as much as possible.

This charge being based merely on a want of courtesy, hardly needs refutation. It is of so little importance in a legal point of

« PreviousContinue »